Shri. Tajbi Sheikh Muzaid And ... vs Shri. Satyawan S/O. Keshavrao ...
2016 Latest Caselaw 2848 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                              
                              NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO.804 OF 2016




                                             
     1) Shri Tajbi Sheikh Muzaid,
         Aged about 40 years, 
         Occupation - Labour.




                                       
     2) Shri Santosh s/o Khedu Nishad,
                             
         Aged about 49 years, 
         Occupation - Labour.
                            
     3) Shri Amirkhan Mazidkhan,
         Aged about 41 years, 
         Occupation - Labour.
      

     4) Shri Sheikh Chotu Sheikh Gaffur,
         Aged about 33 years, 
   



         Occupation - Labour.

     5) Shri Jaigopal Sitaram Gedam,
         Aged about 63 years, 





         Occupation - Labour.

     6) Shri Dasarath Sitaram Gedam,
         Aged about 58 years, 
         Occupation - Labour.





     7) Shri Govardhan Yadao,
         Aged about 49 years, 
         Occupation - Labour.

     8) Shri Sheikh Chhottu Sheikh Gaffur,
         Aged about 43 years, 
         Occupation - Labour.

     9) Shri Sheikh Amhad Sheikh Rajjak,
         Aged about 41 years, 


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         Occupation Labour,




                                                             
       
         All R/o Survey No.116, Mouza-
         Durgapur, Tahsil and District 
         Chandrapur.                                         ....       PETITIONERS




                                                            
                           VERSUS




                                               
     Shri Satyawan s/o Keshavrao Bendle,
     Aged about 71 years,    
     Occupation - Business, 
     R/o Durgapur, Tahsil and District 
     Chandrapur.                                             ....       RESPONDENT
                            
     ______________________________________________________________
                  Shri Amit Khare, Advocate for the petitioners,
      


             Shri U.M. Aurangabadkar, Advocate for the respondent.
      ______________________________________________________________
   



                                   CORAM : Z.A. HAQ, J.

DATED : 15 JUNE, 2016 th

ORAL JUDGMENT :

1. Heard Shri Amit Khare, Advocate for the petitioners/

judgment-debtors and Shri U.M. Aurangabadkar, Advocate for the

respondent/decree-holder.

2. Rule. Rule made returnable forthwith.

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3. The respondent filed civil suit praying for decree for

possession and for perpetual injunction. The respondent claimed that

he is owner of the suit land and the petitioners encroached over the

suit land without any authority. The learned trial Judge, by the

judgment dated 27-10-2010, partly decreed the claim of the

respondent and directed the petitioners/defendants to deliver

possession of 1008 square meters of land out of Survey No.116 of

village Durgapur shown in the plaint map. The petitioners filed appeal

challenging the judgment and decree passed by the trial Court. As

there was delay of about three years and fourteen days in filing the

appeal, the petitioners filed an application praying for condonation of

delay. The learned District Judge has rejected the application by the

impugned order.

4. With the assistance of the learned Advocates for the

respective parties, I have examined the documents placed on the

record of the petition. The application filed by the petitioners before

the District Court praying for condonation of delay shows that

according to the petitioners, there is no wilful default on their part in

prosecuting the matter and they relied on their Advocate who assured

them that if their presence is required, they will be called to attend the

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Court. The learned District Judge has considered the relevant

pleadings. The learned District Judge has recorded that the notice of

execution proceedings was served on the petitioners in 2011 still they

had not taken any steps to file appeal immediately and the appeal is

filed sometime in December 2013. The learned District Judge has

recorded that the petitioners have failed to show that they were

prevented by sufficient cause and could not file appeal earlier.

5. The order passed by the learned District Judge is proper

and cannot be faulted with. I see no reason to interfere with the

impugned order. The petition is dismissed. In the circumstances, the

parties to bear their own costs.

6. The learned Advocate for the petitioners has submitted

that the petitioners are labourers and are residing in the huts

constructed on the suit land. Considering these facts, the petitioners

are granted six months time to vacate the suit land, however, on

condition that the petitioners shall file individual separate

undertakings that they will vacate the suit land and handover vacant

and peaceful possession to the decree-holder till 05-01-2017. The

undertakings shall be filed before the executing Court till 15-07-2016.

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If the undertakings are not filed by the petitioners till 15-07-2016, the

respondent/decree-holder will be at liberty to proceed with the

execution against the petitioners who do not file undertaking till

15-07-2016, and the executing Court shall proceed with the execution

against them.

                                    ig                                    JUDGE
                                  
    adgokar